624 F.2d 851 | 8th Cir. | 1980
Lead Opinion
The district court
In 1969 Pruitt was jury tried and convicted in state court of raping his eight year old sister-in-law. He was sentenced to life imprisonment and no appeal was taken from that judgment.
The single issue on appeal is whether the district court erred in denying Pruitt an evidentiary hearing.
But this court has further held that before a hearing is required, “it must appear that the ‘petitioner’s allegations, if proved, would establish the right to his release.’ ” Morris v. Wyrick, 516 F.2d 1387 (8th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 268, 46 L.Ed.2d 251 (1975), quoting Townsend, supra, 372 U.S. at 307, 83 S.Ct. at 754. Here the trial court correctly concluded the petitions, letters, and affidavits would not likely, upon their introduction at a new trial, produce an acquittal. See Sims v. Brewer, 439 F.Supp. 891 (S.D.Iowa), aff’d, 567 F.2d 752 (8th Cir. 1977). We agree the documents do not cast much of a shadow upon Pruitt’s conviction;
It is so ordered.
. The Honorable William Ray Overton, United States District Judge for the Eastern District of Arkansas.
. By order of January 17, 1980, this court granted the application for the certificate of probable cause, thus we need not and do not consider that issue further.
. This background is taken from the published decision of the appeal in his petition for post-conviction relief brought in state court [Pruitt v. State, 253 Ark. 19, 484 S.W.2d 87 (1972)],
. Pruitt does not allege the instant claim was ever presented to any state tribunal. But this court, in its 1977 and 1978 decisions, pointed out that Pruitt did file a second post-conviction petition in state court pursuant to Rule 37 of the Arkansas Supreme Court’s Rules of Criminal Procedure which was dismissed because he had already filed one post-conviction petition in Arkansas courts. This procedure of denying subsequent petitions has been upheld by the Arkansas Supreme Court [Citing Winberry v. State, 256 Ark. 65, 505 S.W.2d 497 (1974)], and thus Pruitt appears to have met his obligation to exhaust state remedies.
. The record shows:
(1) The letter from Jones contains nothing relevant except for the statement, “I am going*853 to help you as much as I can for I no [sic] you are a inston [sic] man.” No basis for Jones’ knowledge or his relation to the case is stated.
(2) The affidavit from Morris indicates he is a state inmate, who was told by the victim “they are punishing the wrong person” when she visited him in jail prior to his being transferred to the state prison where he was incarcerated with petitioner.
(3) The affidavit of Goff indicates she was told in 1979 by the victim that petitioner was not guilty and that she had known the victim for 10 years and petitioner for 30 years. Morris and Goff do not agree on the name of the victim.
Dissenting Opinion
dissenting:
I dissent from the affirmance.
Appellant-petitioner Pruitt is now serving a life sentence for rape of an eight-year-old girl. His present pro se petition with attached affidavits makes out a claim that appellant has received new information that suggests that his conviction may have rested on incorrect testimony from the alleged victim of the sexual assault. Thus, a miscarriage of justice, perhaps of constitutional magnitude, may have occurred.
In my judgment, the petition and the attached letters and affidavits justify a hearing to examine the merits of the claim. True, taken at face value, the letter from the victim and the affidavits of Morris and Goff concerning the victim’s statement that Pruitt was innocent, would not justify Pruitt’s release under a writ of habeas corpus. But this pro se petition ought to be deemed sufficient to justify further inquiry.
I would remand the case to the district court with instructions to appoint counsel for Pruitt, as this court did for Pruitt on the present appeal. Pruitt should be permitted to adduce additional evidence by affidavit or deposition to clarify the statements of his “witnesses.” The state should be given an opportunity to reply. At its discretion the trial court may wish to hear oral testimony bearing on the issue. From such an expanded record, the district court could then make a more informed ruling.
. Here, certainly the alleged change of testimony of the rape victim ought to be examined. Her trial identification may be open to question as no trial transcript of her testimony remains in existence. Pruitt v. Hutto, 574 F.2d 956, 957 (8th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978).